45 Am. Rep. 268. In addition, it was shown that the vessel stopped nowhere until the port of destination was reached, and then the baggage was placed upon the dock with little of order or control, and leaving the passengers to find their own in the consequent confusion. And so a case was made which should have gone to the jury.

A possible criticism upon this view of the statute is quite likely at this point to suggest itself. One may inquire of what value to the ship-owner is the enactment, when, after all, he is left liable for the loss, and responsible, whether the property is entered upon the ship's manifest or not. The inquiry goes to the root of the matter, and its answer will further test the justice and propriety of our interpretation. Under it, I think the ship-owner is protected as far as he should be, and in two very important respects.

1. The statute leaves him at liberty to refuse to carry the property at all, unless its value and character are disclosed and entered upon the ship's manifest. The law makes him master of the situation, and able, if he shall please, to enforce obedience to it. As carrier, he could not refuse, but since he does not become such unless the proper entry is made, he may refuse until then to transport the property at all. As a simple bailee, he may take the property or decline it. If, now, he chooses to take it in that character, the act is voluntary; there is no compulsion about it; and on what principle shall we say that because he so takes it he shall be absolved from all care over it, at liberty to be as negligent as he pleases, and the only bailee in the world having that lawless control?

2. If a loss occurs, he is no longer liable as an insurer. The door to a just defense is opened before him, and the burden of proof to establish negligence is shifted to his adversary. If the ship-owner has in truth exercised due care, he may show it, and go discharged. If he has not exercised it, if he has been negligent and careless, he ought to respond in damages, and must do so.

It was suggested by the general term, in aid of their construction, that one reason for the enactment was the interest which the government had in procuring entries upon the ves'sel's manifest of all property shipped. If that be true, the construction of the courts below tends very distinctly to defeat such purpose; for, while it assumes it to be for the interest of the passenger to enter his baggage or parcel upon the bills of lading, it leaves him liable to pay possible charges for freight,

and so makes his action doubtful; while, on the other hand, it becomes at once the strong and paramount interest of the ship-owner and master to keep all baggage and property carried as such off of the ship's manifest so far as possible, since, if it goes on, they become liable as insurers; but if it does not, they incur no responsibility, not even that of private bailees. Passengers are little likely to be versed in the shipping laws; owners are sure to be; and the traveler who sought to put his baggage upon the manifest might find it no easy matter to accomplish against the will of ship-owners and officers. In the haste and confusion of departure they could easily postpone or avoid attention to the subject, or repel the passenger with the insolence of command. All baggage and parcels for which no separate freight was to be charged would be kept off of the manifest, so far as owners and officers could effect that result.

It may be that Congress might go as far as the English statute appears to have gone, but our judgment is, that it has neither done so nor intended to do so, and that it has stopped short of a rule which would protect master and ship-owner from the consequences of their own negligence. That, the federal court has held, is against public policy, and presumably it would not encourage a construction in such direction where any other was permissible. It follows that the plaintiff was erroneously defeated, and should have an opportunity to present her case to a jury.

The judgment should be reversed, and a new trial granted, with costs to abide the event.

CARRIERS OF GOODS. — Prima facie, a carrier is liable for goods upon proof of delivery and acceptance for carriage, and of loss or damage in carrying: Hull v. Chicago etc. R'y Co., 41 Minn. 510; 16 Am. St. Rep. 722; for delivery of the goods at the point of destination in good condition is necessary to relieve the carrier from liability as such: Scheu v. Benedict, 116 N.Y. 510; 15 Am. St. Rep. 426. Non-delivery by the carrier is prima facie evidence of a want of ordinary care, and casts upon him the burden of proof: Shenk v. Philadelphia S. P. Co., 60 Pa. St. 109; 100 Am. Dec. 541; Tardos v. Ship Toulon, 14 La. Ann. 429; 74 Am. Deo. 435.

PURDY V. ROME, WATERTOWN, AND OGDENSBURGH RAILROAD COMPANY.

[125 NEW YORK, 209.1

EMPLOYEE'S AGREEMENT THAT HE WILL NOT HOLD HIS EMPLOYER LIABLE for damages resulting from the negligence of the latter, or his servants or agents, is without consideration, and void, when the former was already in the latter's employment, and there was no new employment tendered to or accepted by him, and no promise to continue to employ him after the execution of the agreement.

Edmund B. Wynn, for the appellant.

George S. Klock, for the respondent.

PECKHAM, J. After a careful consideration of all the evidence in this case, we are brought to the conclusion that there was sufficient to go to the jury upon the two questions of the negligence of the defendant and the freedom of the plaintiff from any contributory negligence.

There is one other point made by the defendant which arises. upon the so-called release put in evidence by it, and in which the plaintiff agrees and covenants that the company shall in no case be liable for any damage to the person or property of the plaintiff by reason of its own negligence or that of its agents or servants.

The plaintiff had been in the employment of the defendant for a number of years prior to the execution of the paper. At that particular time he was engaged in performing the duties of a baggage-man on a passenger train. It does not appear that he was, when first employed, engaged for any particular time, nor for any particular service. It was a general employment, and he was subject to the orders of the company. He was working for it as a baggage-man in 1879, and continued as such up to and after the execution of the paper, in August, 1881. The assistant superintendent of the defendant (who was the man that procured the execution of the paper) said "there was no compulsion about signing the contract, nor any new consideration for it. He simply signed the contract, and the defendant kept on employing the plaintiff as a baggageman"; in other words, continued the already existing employment. The plaintiff says he went up to the office of the superintendent, in Watertown, and left his train in the depot waiting for his return. He was gone but a few moments, and went to the office in obedience to a letter he had received, and when he went into the office he said to the assistant superin

tendent: "I came up to sign that paper." The plaintiff says he did not read it, but signed it at once, and went back to his train. The paper reads as follows:

"Whereas, the Rome, Watertown, and Ogdensburg Railroad Company have employed J. R. Purdy in the capacity of general servant at a stipulated rate for his services,

"Now, therefore, in consideration of such employment and the compensation agreed to be paid therefor, the said J. R. Purdy hereby covenants and agrees that in no case shall the said railroad company be liable to the said J. R. Purdy for any damage or injury to the person or property of the said J. R. Purdy by reason of the negligence of the said railroad company, its agents, servants, or employees, and that the said J. R. Purdy accepts such employment with full knowledge and notice of all the risks involved therein."

Upon this evidence, we think that there was no consideration for the execution of the paper by the plaintiff. He was already in the defendant's employment; no new employment was tendered to or accepted by him, and there was no promise that the employment he was already engaged in should continue after the execution of the paper for one moment of time, nor was its execution made a condition of the continued employment of the plaintiff. It constituted a simple gratuity on the part of the plaintiff to the defendant, relieving it from a liability or responsibility which then existed in favor of plaintiff, and in obtaining which the defendant surrendered and promised nothing. The plaintiff was in precisely the same position he was prior to its execution, excepting he had given up to the defendant all claim upon it which he otherwise might have by law, and he had received not one particle of consideration for such surrender of his legal rights.

We think the paper was void for lack of consideration.

In thus deciding, we do not intimate that if the defendant had given some kind of a consideration for the paper, it would have been valid.

It might even then be urged that public policy forbids the exaction of such a contract from its employees by railroad and other corporations, and upon that question we desire to express no opinion at the present time.

The judgment is right, and should be affirmed, with costs.

MASTER AND SERVANT-CONTRACTS WAIVING THE MASTER'S LIABILITY FOR NEGLIGENCE. A contract between a master and his servant, by which AM. ST. KEP., VOL. XXI. - 47

the latter, in consideration of his employment, releases and discharges the former from all liability for damages for injury or death of the servant resulting from the master's negligence, is void, as being against public policy: Note to Harmon v. Salmon Falls Mfg. Co., 58 Am. Dec. 723; Railway Co. v. Spangle, 44 Ohio St. 471; 58 Am. Rep. 833, and particularly note 836-838; Kansas P. R'y Co. v. Peavey, 29 Kan. 169; 44 Am. Rep. 630, and note 633, 634.

LEADBETTER V. LEADBETTER.

[125 NEW YORK, 290.]

EXECUTION, PROPERTY SUBJECT TO. — AFTER the Default OF A MORTGAGOR OF CHATTELS, he has no interest in the mortgaged property subject to execution against him.

Z. S. Sampson, for the appellant.

Joseph S. Bosworth, for the respondents.

O'BRIEN, J. The order from which this appeal is taken determined the right of two claimants to a certain fund which both claimed to be entitled to. The party who succeeded in the courts below is the receiver of the defendant, and the other claimant, who failed and brings this appeal, is a judgment creditor of the defendant.

The undisputed facts upon which the question arises are these: The defendant is a corporation organized under the limited liability act. In proceedings in this action to dissolve it, by reason of insolvency, the respondent William G. Shailer was appointed receiver on the 28th of October, 1889. Previous to this, and on the thirteenth day of February, 1889, the defendant duly executed and delivered and procured to be filed in the proper office a chattel mortgage on the corporate property for three thousand dollars, to secure the payment of its notes to that amount for money borrowed. The condition of the mortgage was, that the defendant should pay the notes as they became due, and that in case of default in the payment of the notes, or any of them, when due, or in case the mortgagor, before the notes, or any of them, became due, should remove any of the goods or suffer any attachment or other process against property to be issued against it, or any judgment to be entered against it, then the said sum of three thousand dollars should become instantly due, and the mortgagee or his assigns should have the right to take possession of the goods and carry them away, and sell the same for the best attainable price, on five days' notice to the mortgagor,